Thursday, October 13, 2022

Timeline scenarios for Charter Challenge

The grassroots supported CharterChallenge for Fair Voting finally won its day in court: Sep 25, 2023.

However, this doesn’t leave enough time for a new electoral system to be implemented by the next federal election, which is Oct 20, 2025 (1)

Here’s one possible timeline scenario showing the various blocks of time required for each step:

First: Time between Sept 2023 Hearing and Judgement = 5 mos? (2)

Second: an appeal of that initial decision. If the initial decision is in our favour, we expect the government lawyers to appeal it. If the decision is not in our favour, we will ask our lawyers to appeal it. The appeal will then be heard in a provincial court of appeal.

Third: Whichever side is unhappy with the appeal court’s decision will then seek leave from the Supreme Court of Canada to appeal the case. The Supreme Court of Canada will first decide whether to hear the case at all. If they choose to hear the case, we'll be given a date to argue our case. 

When the Supreme Court reaches a decision, it’s final. If the case is not granted leave, whatever decision was made by the appeal court will stand as law.

According to the Supreme Court, “The Court’s decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question.”

When applying for leave, we hope to be able to point to the large number of supporters who have made the case possible with small donations as one way of demonstrating the public importance of the case. More importantly, we need your financial support in order to bring the case to court at all. You can support the case here:

Fourth: If the Supreme Court rules in our favour, then time is needed for the government to act on a declaration that First Past the Post is unconstitutional. The Charter Challenge for Fair Voting is asking for a two year "suspension." (3)

Fifth: The Electoral Officer’s required time for logistics and voters to learn new system before voting = 2 years (4)

Total: When you add up these blocks of time, you get well over four years (definitely beyond 2027) because of the wild card of how long the appeal takes.

But here’s a card that’s not so wild: Such a precedent set at the federal level will almost certainly affect the future of all provincial electoral systems.

See addendum below footnotes.



Footnote 1: Fixed election date

Quote: “the maximum duration of a parliament by ensuring that it ends no later than October of the fourth calendar year after its commencement, while leaving the possibility of an earlier end unaffected.”

Date of Oct 20, 2025:

Footnote 2: Time between Hearing and Judgement

Past record shows:

2 months in case of same-sex marriage:  

4 months in R v Morgentaler  

5 months in Vriend v Alberta

Footnote 3: Time for the government to act on a declaration that First Past the Post is unconstitutional: Two years:

The Factum submitted on June 16 2023, in Part IV: Order Sought, paragraph 93, states: "Because election laws based on the principle of proportional representation vary considerably in their structure and design, this Court should suspend the operation of its ruling for a period of two years, to give Parliament sufficient time to study the available alternatives."

Footnote 4:

Star article from July 8, 2016: Chief electoral officer warns time running out on overhauling system: Paul Wells.

Quote from article: ““We need at least two years,” Mayrand said”


Question: How long does a Charter Challenge take?

Answer: It varies: In one example, Carter vs AG (Carter v Canada) it took approx 5 years between the filing of the lawsuit and a new law receiving Royal Assent. Here’s the chronology:

April 2011: The BCCLA had filed the lawsuit.
June 2012: Supreme Court of BC ruled in favour of the BCCLA.
Oct 2013: Court of Appeal for BC overturned that ruling.
Feb 2015: Supreme Court decision

Time for the government to develop a new law = 1.5 yrs
June 2016: A final vote was held in the House of Commons on a new law, and it received Royal Assent the same day. 

The time period between the ruling of the first court to a new law receiving Royal Assent was four years (June 2012 to June 2016).

But for the Charter Challenge for Fair Voting, the time for the government to develop a new law will be 2 years instead of 1.5 yrs., which changes that 4 yr estimate into a 4.5 year estimate.

It’s impossible to make an exact comparison between one case and another so what you see below is a rather haphazard and arbitrary exercise in speculation: 

The Charter Challenge for Fair Voting has its first hearing in Sep 2023.

If we expect a ruling from the first court in early 2024, then 4.5 yrs after that is late 2028. 

If it takes another 2 years for the electoral officer to implement a new electoral system then that would take us to late 2030. 

But in the unlikely event that an electoral officer can implement a new system in only one year, then it may or may not be ready for a possible Oct 2029 federal election – if, in fact, there even is an election in 2029, as we see below:

Election dates can vary: An election is scheduled for 2025. Four years after that is 2029. But minority governments often only last approx two years.

Considering how precedents affect future cases, it’s probably not impossible that a favourable Supreme Court ruling about the federal electoral system could affect a provincial election even before it affects a federal election.


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